are of the opinion that the judgment of the court below should be affirmed. Emmert and Gilkison, J. J. are of the opinion that the judgment of the court below should be reversed. Flanagan, J. having been of counsel in the cause, and incompetent to participate in the decision for that reason, and the remaining judges having been equally divided at the last term and being equally divided at this term, the judgment of the court below is affirmed without costs in accordance with the provisions of Burns’ 1946 Repl., §2-3232.
Separate opinions follow.
Separate Opinion
Draper, J.An indictment was returned to the Whitley Circuit Court charging the appellant with murder in the first degree.
Under special appearance, the appellant filed two paragraphs of plea in abatement. The state’s demurrer to each paragraph for want of facts was sustained, and such proceedings were thereafter had that the appellant was found guilty of murder in the second degree, and sentenced to imprisonment for life.
The sole error assigned is the sustaining of the state’s demurrer to appellant’s plea in abatement.
The first paragraph of the plea alleges:
“That the indictment returned herein was returned by a grand jury not organized in accordance and compliance with the statutes of the State of Indiana for the following reasons and in the following particulars, and that this affiant had no opportunity to object to said grand jury by challenge:
“(a) The first day of the January Term of the Whitley Circuit Court was January 7, 1952, and *673the names of said grand jurors were not drawn at 10:00 o’clock A.M. on the Monday immediately preceding the commencement of said term, nor at the earliest hour practicable thereafter, although no reason existed for failure to so draw said names, but said names were in truth and in fact drawn on Wednesday, December 26, 1951.
“(b) The drawing of the names of said grand jurors was not made pursuant to a written order duly entered and publicly posted in the Clerk’s office at least two hours prior to the time determined for said drawing by the Whitley Circuit Court or pursuant to order of said Whitley Circuit Court duly entered and publicly posted in the Clerk’s office at least two days prior to a time determined by said Whitley Circuit Court for said drawing.
“(c) That no venire was directed issued by the Whitley Circuit Court for said grand jurors, nor issued for said jurors, nor was any return made of such proceedings.
“Wherefore, defendant asks that this action abate.”
The second paragraph of the plea alleges:
“That the Jury Commissioners for the 1952 January Term were not properly selected or organized in accordance and compliance with the statutes of the State of Indiana for the following reasons and in the following particulars, namely:
“(a) The Jury Commissioners appointed were not caused to appear and take an oath or affirmation in open court.
“ (b) No oath or affirmation was entered of record in the order books of said court.
“(c) The Court did not instruct the Jury Commissioners concerning their duties.
“Wherefore, defendant asks that this action abate.”
The first paragraph of the plea alleges a failure to comply with certain of the requirements of Burns’ 1946 Repl., §4-3320. The second alleges a failure to *674comply with certain of the requirements of Burns’ 1946 Repl., §4-3301.
The appellant cites and relies upon Walter R. Rudd v. State of Indiana (1952), 231 Ind. 105, 107 N. E. 2d 168. That case does not govern this one, however, for there we were dealing with a factual situation as developed by a trial of the issues presented by the plea in abatement. The legal sufficiency of the plea in abatement filed in that case was neither questioned nor considered. In that case no question of pleading was presented. In this case no other question is presented. As this case comes to us, we are called upon to decide only whether the plea in abatement in this case is sufficient, as a matter of law, to meet the challenge of a demurrer addressed thereto.
Pleas in abatement are not addressed to the merits of the prosecution, but on the contrary assign a reason or reasons why the state should not be permitted to proceed with the present action. Being dilatory pleas, which merely seek to overthrow or delay the proceeding for the present, they are not favored in the law. No presumptions of fact are allowed in their favor. They must possess the highest degree of certainty in every particular and intent, and state with certainty the specific grounds upon which the defendant demands that the prosecution abate. They must state facts. Mere conclusions or opinions of the pleader are insufficient. Randolph v. State (1928), 200 Ind. 210, 162 N. E. 656; State v. Lowe (1929), 200 Ind. 487, 164 N. E. 857; Brown v. State (1933), 204 Ind. 585, 184 N. E. 177; 22 C. J. S., Criminal Law, §§427, 430.
Tested by the above rules, it is apparent that this plea was not sufficient to abate the action, and that the demurrer was properly sustained.
Each paragraph of the plea in abatement alleges facts *675which go, either directly or indirectly, to the regularity of the organization of the grand jury. We think the authorities sustain the proposition that if an accused has a suitable opportunity to attack the manner in which a grand jury is organized by way of a challenge to the array, he must do so. Hardin v. The State (1864), 22 Ind. 347; Mershon et al. v. The State (1875), 51 Ind. 14; McClary v. The State (1881), 75 Ind. 260; Pointer v. The State (1883), 89 Ind. 255; Stipp v. State (1918), 187 Ind. 211, 118 N. E. 818.
The first paragraph of the plea alleges, by way of conclusion, that the appellant had no oportunity to object to the grand jury by challenge. Such is not alleged in the second paragraph by way of conclusion or otherwise. Nowhere does the plea allege facts from which the court ■ itself could determine whether the appellant could have made his objection by challenge.
It is entirely possible that a defendant who is not in jail or out on bail to await the action of the grand jury would not know that any matter involving him would be presented to the grand jury. If in jail, he might not be able to make his challenge because he has no attorney,.or the means to employ one, and he himself is not brought out for the purpose. In such cases, as indicated by the above cited cases, an objection by way of plea in abatement is well grounded, and should be sustained.
But it is not enough to allege generally that the accused had no opportunity to object to the grand jury by challenge. To be good as against demurrer the plea must allege facts showing why the objection was not or could not have been made by challenge so that the trial court may determine from the facts alleged, whether or not the defendant did in fact have a suitable opportunity to raise the objection by way of chai*676lenge to the array. The plea under consideration does not do so, and it was, therefore, not sufficient as against demurrer, and the judgment should be affirmed.